JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 25.10.2005, in A.S.No.10 of 2005 on the file of the District Judge of the Nilgiris at Udhagamandalam reversing the judgment and decree dated 04.05.2005 in O.S.No.106 of 2001 on the file of the Subordinate Court, Udhagamandalam.)

1. This second appeal is directed as against the judgment and decree dated 25.10.2005, in A.S.No.10 of 2005 on the file of the District Judge of the Nilgiris at Udhagamandalam reversing the judgment and decree dated 04.05.2005 in O.S.No.106 of 2001 on the file of the Subordinate Court, Udhagamandalam.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The case of the plaintiff in brief is as follows:-

3.1. The suit is filed for partition by metes and bounds and allot the extent of 0.03-1/16 acre to the plaintiff with separate possession. The immovable property admeasuring 0.65 acre of agricultural land in SF.No.233/B situated at Yedapalli Village, Nilgiris District was purchased jointly by M/s.Kullan and J.Nanjan, brothers both sons of Joghee Gowder of Yedappalli Village under registered sale deed dated 09.01.1919. The said J.Nanjan is the head of the branch of the first defendant’s vendors and the Kullan is the head of the plaintiff’s branch. They are entitled for undivided half equal share in the above said property. Therefore, the Survey Field No. was altered into R.S.No.233/2 (old) and at present as RS.No.153/57 of Yedappalli Village.

3.2 The first defendant is the purchaser from the descendants of the branch of J.Nanjan. The defendants 2 to 7 are the brothers and sisters of the plaintiff and the eighth defendant is the widow of the plaintiff’s brother, Bhojan. The plaintiff and the defendants 2 to 8 are form the direct legal heirs of the branch of late J.Kullan referred to above. The said Kullan, out of his share to an extent of 8 cents conveyed to one Bellie Gowder by the document No.335 of 1919 dated 24.03.1919. His sons, Mathan and Kari executed another sale deed in respect of their vendor’s share admeasuring 0.02 acres in favour one, Krishnamachari by document No.1162 of 1928 dated 15.09.1928. The said property was again purchased by the said Mathan and Kari on 13.11.1934 by the registered sale deed as document No.161 of 1934. Hence, the plaintiff and the defendants 2 to 8 as the legal heirs of Kullan’s branch are entitled to 0.24-1/2 acre in the said field. Another brother J.Nanjan’s branch was originally entitled to an extent of 32 ½ cents. It was mortgaged by Ranganathan, son of the said Nanjan to one, Lalchand Abhaychand and Co. by the mortgage deed registered as document No.199 of 1968 dated 02.12.1968 with the file of the Sub Registrar, Coonoor. It is still in force and the same has not been redeemed. Therefore, the branch of the said Nanjan was entitled only to the extent of 32 ½ cents in the suit property. While being so, the property admeasuring 0.50 acre in RS.No.153/57, was conveyed to the first defendant from the legal heirs of the Nanja Gowder by the sale deed dated 25.08.1998. The purchase by the first defendant is illegal and cannot convey title for 50 cents as vendors can claim only 32 ½ cents. As such the plaintiff and the defendants 2 to 8 are entitled for 24 ½ cents in the suit property. As such the first defendant cannot abrogate the rights of the plaintiff and the defendants 2 to 8, who are legally entitled to 24 ½ cents in the suit property.

3.3 In fact, the plaintiff and the defendants 2 to 8 are in possession of their share in the suit schedule property. Now the first defendant is attempting to put up construction in the suit property to the derogation of the rights of the plaintiff. Therefore, the plaintiff and the defendants 2 to 8 caused notice on 12.02.2001. In fact, the first defendant attempted to demolish the super structure put up in the suit property and as such the plaintiff and the defen